Sanders v. Stotesbury

Opinion by Baldbige, J., This action was brought to recover damages for personal injuries sustained in a collision between two automobiles. A jury found a verdict in favor of the plaintiff for one thousand dollars, and this appeal followed. At 11:15 o’clock on the night of October 30, 1928, the plaintiff was driving a Lincoln car southwardly on the East Eiver Drive, in the City of Philadelphia, and the Cadillac of the defendant, driven by a chauffeur, was proceeding northwardly. When the cars reached a point from three to six hundred feet south of a curve at the Grant monument, they collided. The assignments of error which we will discuss are (1) to the admission of evidence showing the manner and conduct of the driver and the position of the defendant’s automobile at points distant from the place of the accident; and (2) to the charge of the court. The court allowed witness Bosworth, who was driving in the same direction that the defendant’s car was travelling, to testify that after he rounded the Washington monument, the defendant’s driver tried unsuccessfully “to force” his way through to his right and also to get by other cars, and that, finally, when the natural stone bridge, north of Girard Avenue Bridge, was reached, the defendant’s car passed him, “taking the extreme left of all the traffic,” and, thereafter, passed other cars in quick succession. This testimony described the alleged operation of the defendant’s car at a considerable distance from the scene of the accident. If there had been no eye-witnesses to the run-in, *526 the admission of this testimony would have been more doubtful. The question involved, however, was, whether the proximate cause of the accident was the driving of the defendant’s car on the wrong side of the road, when the accident occurred, or whether the plaintiff turned suddenly to his left and ran into the defendant’s car. Witnesses testified as to the location of the cars and the manner in which they were being driven immediately before, and at the time of, the accident. In these circumstances, the conduct of the defendant’s driver prior thereto was not relevant. The trial judge conceded that there was nothing in the testimony to indicate any negligence on the part of the defendant’s driver in attempting to pass others before he reached the point of the accident. But the court was of the opinion that the testimony of the driver’s prior conduct strengthened the plaintiff’s theory that the defendant’s driver was attempting to pass other cars at the time of the accident and that his former movements were but a part of the single transaction and served to throw light upon the question of the negligence charged. With this view we disagree. The defendant passed cars at distant points, under conditions free of proven negligence; that does not warrant the deduction that later his chauffeur negligently drove on the wrong side of the road. Nor do we view his former manner of driving the car, at a fairly remote place, so intimately connected with his conduct at the time of the impact as to be regarded as a “single transaction.” That contention would have had more force, if there had not been witnesses to the accident, on the theory that the driver’s former action was the best available evidence to show his conduct at the time of the collision, but that rule does not apply where witnesses were present and saw what occurred; conjecture then was unnecessary. The admission of testimony complained of, no doubt, *527 left an impression on the jury that the defendant was endeavoring recklessly to preempt the road, irrespective of the rights of others. Such an effect would be very harmful when it came to determining the real cause of the collision. The second assignment of error relates to the charge of the court and calls for our consideration. The trial judge said to the jury, “Looking at the evidence from that view, the plaintiff contends, as I understand it, that he was coming down the East River Drive. How fast he was going he does not tell ns and although it is a matter entirely for you, it seems to me that the speed of the respective cars in this case has very little to do, if anything, with the causes of the accident. The causes of the accident arise from other factors, it seems to me, than mere speed. So, in that view, it is not very important how fast he was coming.” Under the plaintiff’s testimony, the defendant’s car was going thirty miles an hour and the speed of that car probably was not important, but, under the testimony of two disinterested witnesses produced by the defendant, the plaintiff’s car was coming in the opposite direction to the defendant’s car at a speed of forty-five to fifty miles an hour, five or six seconds before the collision, and the speed of that car went to the very essence of the defense. The plaintiff said that he heard a noise which he thought was under the folding seat in his car and then the car tilted and swerved to the right; he straightened it up and was hit by the other car. Maloney, a park guard called by the plaintiff, testified that the plaintiff was on the right side of the road, but he stated also that immediately before the accident, the plaintiff’s rear tire flew off, then his car “tilted and slightly swerved” and “it continued on down the avenue for about an *528 other one hundred feet or so;” then its right side was hit by the right side of the defendant’s car. The theory of the defendant was, that when the plaintiff’s tire flew off, his car was going at such a high rate of speed that his car swung suddenly and swiftly to the left—the defendant’s side of the road, and the defendant’s driver, attempting to escape the oncoming car, turned abruptly to the left at a time when he was on his right side of the road. In so doing, the right side of each car came in contact with one another, as stated by the park guard. Photographs of the two cars were offered in evidence and they clearly show that the cars came together with great force. The right of a judge to express an opinion as to the weight and value of evidence, or to the truthfulness of testimony, provided the jury is left free to come to its own decision as to the facts, has been recognized for many years and is supported by a multitude of cases. In Ditmars v. Com., 47 Pa. 335, the Supreme Court, speaking through Mr. Justice Thompson, said, “It is not error upon the part of the court to express an opinion merely upon the facts of the case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Care must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them [the facts] for themselves.” In Burke v. Maxwell, 81 Pa. 139 (152), Mr. Justice Paxson said, “The judge has a right to aid the jury by an expression of his judgment upon the effect of the evidence but not as to mislead them or to control their deliberations ...... Deductions and theories are drawn, which if not wholly unsupported, should have been left for the jury.” See also Siracusa v. *529 Miller Const. Co., 43 Pa. Superior Ct. 466; Vernon v. Vernon, 72 Pa. Superior Ct. 91. We are confident that the trial judge did not intend to mislead or invade the right of the jury. In our judgment, however, the minimizing of the speed of the plaintiff’s car—stating that speed had little, if anything, to do with the cause of the accident—was détriméntal to the defense. The depreciation of that factor by the trial judge probably dissuaded the jury from giving it the serious consideration to which it was entitled. It was conceded that the tire flew- off, and it would not be an unreasonable deduction to conclude that the speed of the car contributed very largely to the accident; it was certainly a legitimate and plausible theory to advance. The expression of the trial judge complained of did not deal merely with a fact in evidence; it related to the theory of the case, which involved the application of the law to- the facts, and, hence, if such an expression was inaccurate, it was to the defendant’s injury. After an-exception was asked to the part of the charge in question, the. trial judge did state to the jury, “Of course what.I-said upon the subject of speed does not control you. I was analyzing the evidence telling yoil what I thought the significance of speed in the case was. If you think it is important you will hear it in mind and give it such weight as you think it deserves.” A mere direction that the jury was not bound by his -view might not redress the harm done. In Sampson v. Sampson, 4 S. & R. 329, the court held that it is the peculiar- and exclusive province of a jury to draw inferences from facts-that have been produced. As was said.in Spitzel v. Hunt, 39 Pa. Superior Ct. 631, ‘ ‘ Such a statement ■ coming from the hénch would control, or at least very seriously affect, the determination of the jury.” See also Shipp v. Schmitt et al., 71 Pa. Superior Ct. 496. *530 We are of the opinion that the defendant is entitled to a retrial. Judgment is reversed and a new trial ordered.